Employer's Guide to Discrimination: Hiring and Managing Employees with Criminal Records

There is no federal law that directly prohibits employment discrimination based on a criminal record, but the U.S. Equal Employment Opportunity Commission (EEOC) and some courts have ruled that discrimination based on a criminal record can be a form of race discrimination, and a violation of Title VII of the Civil Rights Act of 1964. The EEOC states that nationally, some racial groups are convicted in numbers which are disproportionate to other groups, and barring people from employment based on their conviction records will have a disproportionate impact on people of color. 

Background Checks and Interviews

Depending on state law, employers may or may not be permitted to ask job applicants/employees about their prior
arrests or convictions. Check with your local EEOC office for the laws in your area.

In some states, such as Wisconsin, an employer may ask if an applicant has any pending charges or convictions, as long as it is clear that the reply will only be considered if the offenses are substantially related to the job. Check your state law to determine the extent to which employers are allowed to ask about or consider criminal records when making adverse employment decisions, such as the refusal to hire or promote employees based on their criminal record.Generally, employers should only ask questions which are relevant to the employment decision. Many states have specifically prohibited or advised against pre-employment inquiries in their fair employment laws due to the possible misuse of this information. Employers can access background checks through their local courts, state repository, or through credit reporting agencies that do criminal background checks. 

Arrest Records

The EEOC rules that the use of arrest records as an absolute bar to employment has an unequal impact on some protected groups, and as a result, employers cannot exclude applicants based solely on their arrest record. If the charges alleged in the arrest record are related to the job, the employer should evaluate whether the arrest record reflects the applicant's conduct. The EEOC recommends that an employer should offer the applicant or employee an opportunity to explain, and, if he or she denies the charges, make the follow-up inquiries to determine credibility. 

Conviction Records

According to the EEOC, conviction records are ‘reliable evidence' that a person engaged in the alleged conduct, since the justice system requires the proof beyond a reasonable doubt for a conviction. In contrast, arrests alone are not reliable evidence that a person has actually committed a crime. 

Exceptions

It's unlikely that an employer will be able to justify broad general inquiries about an employee's or applicant's arrests. However, employers may exclude employees with criminal records from employment opportunities if a business necessity exists, essentially, if the employee or applicant's conduct indicates unsuitability for the position. A business necessity is commonly cited if the conduct for which the applicant/employee was arrested is job-related and relatively recent.Both states and the federal government have regulations that limit the employment opportunities for some people with criminal records, making it harder (or impossible) to get certain occupation certifications. This exception is common in the healthcare industry, and some others, including jobs that involve working children. In some cases, these restrictions can be appealed if the applicant shows evidence of rehabilitation. For more information on discrimination, see Business.gov's Employment Discrimination and Harassment portal. 

Related Resources:

• Sexual Harassment in the Workplace

• Employer's Guide to Discrimination: Pregnancy Discrimination

• 10 Regulatory Steps to Take When Hiring Your 1st Employee

• Employee Benefit Plans: What's the Law and What's Optional

• Ensuring a Healthy and Risk Free Workplace

Message Edited by NicoleD on 09-17-2009 12:11 PM

Message Edited by ChristineL on 11-30-2009 02:27 PM